Wasif Akhtar vs State of U.P.and Others

Pradeep Kant, J.—Counteraffidavit has been filed by opposite party No. 5 to which a rejoinderaffidavit has been filed by the petitioner. The State has not filed any counteraffidavit till date despite the time granted to it. However, the record is available with the learned State Counsel and he has produced the record before this Court and has consented that the writ petition be disposed of finally.

The petitioner, who has been working as Dental Hygienist, was posted at Community Health Centre, Ikauna, District Shravasti and while being posted there a request was made for his transfer to Lucknow, as his wife Smt. Nafees Fatima was suffering from Rheumatoid Arthritis and was under the treatment of Dr. S.K. Dass at King George''s Medical College, Lucknow. This application appears to have been moved on 3052001. On consideration of the request of the petitioner for transfer of the petitioner to Lucknow, the State Government issued an order on 762001 directing the Director General, Medical and Health Services, Lucknow to accommodate the petitioner on the newly created post of Dental Hygienist in Community Health Centre, Sarojininagar, Lucknow. Certain correspondence took place between the Government and the Director General for compliance of the directions issued by the State Government for making the transfer of the petitioner. After various correspondence and the representation made by his wife also, an order of transfer was issued on 21st July, 2001 posting the petitioner at Community Health Centre, Sarojininagar, district Lucknow on his request. The petitioner, however, was not allowed to join the duties and in between the Chief Medical Officer on 2472001 required the confirmation of the transfer order from the Director (Admn.) which fact was confirmed by letter dated 2872001 and thereafter the petitioner submitted his joining report to the Chief Medical Officer, Lucknow on 2872001. Again the Chief Medical Officer, Lucknow sought confirmation about the transfer of the petitioner from the Director (Admn.) though earlier the confirmation had already been sent by the Director (Admn.). However, the petitioner was allowed to resume duties at Community Health Centre, Sarojininagar, Lucknow on 182001. In the meantime, it appears that opposite party No. 5 also made a representation on 272001, as informed by the learned Counsel for opposite party No. 5, Sri D.K. Upadhyaya, for his transfer to Community Health Centre, Sarojininagar, Lucknow on the ground of his wife''s illness. In the counteraffidavit filed by opposite party No. 5 illness of the wife has not been disclosed. On a specific query being put to the learned Counsel representing him, he expressed his ignorance in the matter and stated that in the representation also no specific illness of the wife has been mentioned. Be that as it may, the question for determination is as to whether in a case where on request of a particular Government servant, his transfer order has been passed filling up the vacancy which existed at the time of his transfer can be upset for accommodating another person, who has also made request for his transfer for any reason whatsoever. It is undisputed that accepting request of the Government servant of transfer on bona fide and genuine grounds and for reasons which may appeal to the transferring authority lies within full discretion of such authority but that discretion should be exercised judiciously and honestly. It is always open for the transferring authority to consider the respective claims of Government servants, if there are two or more than two in number claiming their transfer for personal reasons no compassionate grounds to a particular place but once the order has been passed accepting the request of a particular Government servant unless there are very strong and exceptional reasons for accommodating another person at that very place, it shall not be open for the authority concerned to cancel the earlier transfer order and to accommodate another Government servant in his place.

In the instant case, petitioner''s wife had made request and has given specific reasons for the transfer of the petitioner from Shravasti to Lucknow. The documents regarding illness of wife have been brought on record also. The State Government after considering the request of transfer passed an order on 762001 for transferring the petitioner to Lucknow. The transfer order, after various correspondence with the State Government, was issued by the Director General on 2172001. The Chief Medical Officer, not satisfied with this transfer order directed for confirmation from the Director (Admn.) which confirmation was duly sent by the Director (Admn.) but, even after the petitioner reported for duty, again the confirmation was sought for from the Director (Admn.) this was again sent in favour of the petitioner and it was thereafter only that the petitioner was permitted to resume his duties at Community Health Centre, Sarojininagar, Lucknow. It is not known as to what compelled the Chief Medical Officer to get the confirmation of the transfer order again and again when it was duly signed by the Director General and got himself satisfied by getting the letter of confirmation from the Director (Admn.). The representation of opposite party No. 5 was obviously made much after the direction of the State Government was issued on 762001 and as informed it was only on 272001 that such a representation was made and on 2172001 the transfer order was issued by the Director (Admn.) the State Government was possessed of both the representations i.e. with respect to the petitioner as well as opposite party No. 5 but the State Government did not think it appropriate to modify or annul its earlier order dated 762001 and therefore, apparently the State Government was not satisfied with the request made by opposite party No. 5 for transferring him to Lucknow, may be because opposite party No. 5 did not disclose any specific ailment of his wife and only a vague averment was made that his wife was ill whereas petitioner''s wife was suffering from Rheumatoid Arthritis and was posted at Shravasti where no medical facilities were available. The petitioner, having been transferred on request by means of the order dated 2172001 and having joined on the said post on 182001, could not have been shifted from the place for the simple reason to accommodate the request of opposite party No. 5. The request of opposite party No. 5, if at all was found genuine, could have been considered for posting him at any other place where the vacancy was existing. Cancelling the order of transfer of the petitioner and thereby accommodating opposite party No. 5, after the petitioner had joined cannot be said to be a valid ground for shifting the petitioner from Lucknow to Shravasti. Once the vacancy stands filled up on the request of the petitioner, the other order cancelling petitioner''s transfer and accommodating opposite party No. 5 at Lucknow was thus per se illegal. Learned Counsel for opposite party No. 5 has submitted that in pursuance of the cancellation order dated 782001, opposite party No. 5 has also submitted his joining at Lucknow on 1082001 and therefore, the petitioner be shifted now from Lucknow. The joining of opposite party No. 5 shall not give him any right to continue at Lucknow nor would defeat the claim of the petitioner to stay at Lucknow. The order of cancellation of transfer of the petitioner dated 782001 is thus liable to be quashed.

Since opposite party No. 5 had made a request for transfer and the learned Counsel Sri D.K. Upadhyaya, appearing for opposite party No. 5 has stated that he is not specifically interested to be posted in Community Health Centre, Sarojininagar, Lucknow but, if possible, he may be accommodated somewhere in Lucknow or in some adjacent district, I direct that Director (Admn.) shall consider the case of opposite party No. 5 sympathetically and shall see that if it is possible to accommodate him at Lucknow or in some adjacent district, he may pass appropriate orders. The opposite party No. 5 may make a representation to the Director (Admn.) in this regard.

The writ petition is allowed. The order of cancellation of transfer of the petitioner dated 782001 is hereby quashed. The petitioner shall be allowed to continue at Community Health Centre, Sarojininagar, Lucknow. The opposite party No. 5 is restrained from functioning as such at the aforesaid place.